127 S.W. 913 (Mo.App. 1910), Link v. Hathway

Citation:127 S.W. 913, 143 Mo.App. 502
Opinion Judge:GRAY, J.
Party Name:LEWIS LINK, Appellant, v. W. W. HATHWAY, Respondent
Attorney:W. P. Campbell and O. L. Haydon for plaintiff. Lewis Luster for defendant.
Case Date:April 04, 1910
Court:Court of Appeals of Missouri

Page 913

127 S.W. 913 (Mo.App. 1910)

143 Mo.App. 502

LEWIS LINK, Appellant,

v.

W. W. HATHWAY, Respondent

Court of Appeals of Missouri, Springfield

April 4, 1910

Appeal from Greene Circuit Court.--Hon. James T. Neville, Judge.

AFFIRMED AS TO PLAINTIFF'S APPEAL.

REVERSED AND REMANDED (with directions) AS TO DEFENDANT'S APPEAL.

AFFIRMED AS TO PLAINTIFF'S APPEAL. REVERSED AND REMANDED (with directions) AS TO DEFENDANT'S APPEAL.

W. P. Campbell and O. L. Haydon for plaintiff.

(1) The agreement in the written contract of June 21, 1906, to "furnish repairs, ordinary wear and tear excepted," obligated the defendant to rebuild and repair, after a partial destruction by fire. Hoy v. Holt, 91 Penn. 88, 36 Am. Rep. 659; Beach v. Crain, 2 N.Y. (2 Comst.) 86, 49 Am. Dec. 369; Polack v. Pioche, 35 Cal. 416, 95 Am. Dec. 115; Scott v. Scott, 18 Gratt (Va.) 166; Ross v. Overton, 3 Cal. 309, 2 Am. Dec. 552; Gathwright v. Callaway Co., 10 Mo. 663. (2) Where a contract is not expressed in precise terms, the court will not hold it meaningless, but will look to the facts and circumstances surrounding the subject-matter it contains, and the acts of the parties, in aid of construction. Belch v. Miller, 32 Mo.App. 387; Gas Light Co. v. St. Louis, 46 Mo. 121; Goldman v. Wolf, 6 Mo.App. 490; Bishop on Cont., 412; Edwards v. Smith, 63 Mo. 119; Bruce v. Beak, 43 Mo. 266; Moss v. Green, 41 Mo. 390. (3) The court should have submitted the issues to the jury on the testimony in the record tending to show that defendant was at the time and before the issue of the attachment selling and offering to sell in a lump all his available assets and effects, and gave as a reason therefor that he was closing out his business in Missouri, with a view to establishing a lumber business in Alabama, as soon as he could close out his business in Missouri. Elliott v. Keith, 32 Mo. 579; Kurtz v. Troll, 86 Mo.App. 649; Bank v. Russey, 74 Mo.App. 651; Bank v. Lumber Co., 134 Mo. 433; Bank v. Lumber Co., 68 Mo.App. 81; Bank v. Lumber Co., 59 Mo.App. 317; Commission Co. v. Hunter, 91 Mo.App. 333; Powell v. Matthews, 10 Mo. 49; Waples on Attachment, sec. 71; Stewart v. Cabanne, 16 Mo.App. 517; Enders v. Richards, 33 Mo. 598; Noys v. Cunningham, 51 Mo.App. 194.

Lewis Luster for defendant.

(1) Appellant is in no position to have the trial court's order referring the case reviewed by this court on appeal, for the reason that appellant failed to save his exceptions to this order by a term bill of exceptions. Smith v. Baer, 166 Mo. 401; Tinsley v. Kimery, 170 Mo. 310. (2) This being a proper case for reference as to some of the counts, it was within the discretion of the court to refer the whole case, which discretion will not be reviewed unless it was clearly abused. Smith v. Baer, 166 Mo. 402; R. S. 1899, sec. 694. (3) Under the provision of the written contract to "furnish repairs," defendant was not bound as an insurer of the mill, and is not responsible in damages for its burning. Livingston County v. Graves, 32 Mo. 479; McEvers v. Steamboat Sangamon, 22 Mo. 187; Halbut v. Forest City, 34 Ark. 246; Pollard v. Schaffer, 1 Dall. 210; Maggort v. Hansbarger, 8 Leigh. 532; Miller v. Morris, 55 Tex. 412; Levey v. Dyess, 51 Miss. 569; Wattles v. Ice Co. (Neb.), 36 L.R.A. 424; Whitaker v. Hawley, 25 Kan. 692; Warner v. Hitchins, 5 Barb. 666; Wainscott v. Silvers, 13 Ind. 500; Warren v. Wagner, 75 Ala. 188; Howeth v. Anderson, 25 Tex. 557; Nave v. Berry, 22 Ala. 382; Van Wormer v. Crane, 51 Mich. 363; Wait v. O'Neil, 72 F. 348. (4) There was no evidence tending to substantiate any grounds for attachment alleged by plaintiff, and the action of the lower court in sustaining defendant's demurrer to plaintiff's evidence was justified and should be upheld by this court on appeal. Meyers v. Boyd, 37 Mo.App. 532; Distilling Co. v. Lock, 59 Mo.App. 640; Hardwick v. Cox, 50 Mo.App. 515; Rosenthal v. Widensholer, 115 Mo.App. 237; Milling Co. v. McWilliams, 121 Mo.App. 322; Adams v. Abernathy, 37 Mo. 198. (5) Under the laws of Missouri the question of what is a man's domicile has been settled, both by the statutes and decisions. R. S. 1899, sec. 4160; Mercantile Co. v. Burrell Sisters, 66 Mo.App. 123; Chariton Co. v. Moberly, 59 Mo. 238. (6) An unsettled account is not grounds for an attachment. Stead v. Mahon, 70 Mo.App. 400; Urner v. Prewett, 24 Mo.App. 539; Meyers v. Boyd, 37 Mo.App. 536. (7) There was testimony to sustain every issue of fact on which the referee's finding was against plaintiff. On issues of fact the referee's finding stands the same as the special verdict of a jury, and will not be disturbed by the appellate court where there is testimony to sustain it. Benevolent Ass'n v. Kribben, 47 Mo. 37; Franz v. Dietrick, 49 Mo. 95; Berthold v. O'Hara, 121 Mo. 97; Utley v. Hill, 155 Mo. 277; Smith v. Baer, 166 Mo. 406; Vogt v. Butler, 105 Mo. 485; Ferry Co. v. Railroad, 73 Mo. 419. (8) The court erred in taxing all the costs against defendant. R. S. 1899, secs. 694, 1547, 1560; Buckman v. Railroad, 98 S.W. 822; Schumacher v. Mehlberg, 96 Mo.App. 600; Needles v. Burk, 98 Mo. 477.

OPINION

Page 914

[143 Mo.App. 507] GRAY, J.

On November 7, 1906, the plaintiff commenced suit against the defendant in the circuit court of Howell county, by filing a petition containing nine counts. The answer of the defendant was a denial of the different counts in plaintiff's petition, and with five counterclaims set forth in his answer. When the suit was commenced, an attachment writ was sued out in aid thereof by the plaintiff, and certain property of the defendant seized. In due time the defendant filed his plea in abatement to the attachment and a trial was had on the issues thus made before a jury in the Howell County Circuit Court, March term, 1907, and at the conclusion of the plaintiff's evidence, the court instructed the jury to find the issues for defendant, and a verdict was rendered in accordance therewith. Motion for new trial was filed in statutory time and a hearing on the same was continued to the July term, 1907, when the motion was taken up and overruled. Whereupon, and on the same day the plaintiff filed his bill of exceptions and an affidavit for an appeal from the judgment of the court overruling his motion for new trial on the plea in abatement. Afterwards and on the same day the plaintiff applied for and obtained a...

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